Wild v. Atlantic Refining Co.

decided: March 17, 1952.

WILDv.ATLANTIC REFINING CO.

Author: Goodrich

Before GOODRICH and HASTIE, Circuit Judges, and BURNS, District Judge.

GOODRICH, Circuit Judge.

The plaintiff as administratrix is suing for damages occasioned by the death of the decedent, her husband. The jury returned a verdict for the plaintiff and the trial judge, upon motion, set it aside and ordered judgment for the defendant n.o.v. The correctness of that action is the question on this appeal.

John Wild, a citizen of New Jersey, the decedent, was an experienced painter. He was foreman on a painting job for the Camden Painting Company, his employer. The job was the painting of the outside window sashes and exterior coping on No. 17 Boiler House of the Atlantic Refining Company, a Pennsylvania corporation, at 30th and Passyunk Avenue, Philadelphia. Mr. Wild met his death during the course of the operation. While he was walking on the sloping roof engaged in business incidental to the painting work, a portion of the roofing broke throwing the unfortunate man down to the bottom of an air shaft and inflicting injuries from which he died. No one witnessed the accident, the details concerning which are, therefore, necessarily unknown.

The question posed in the case is whether there was sufficient evidence of negligence on the part of the defendant to support the jury's verdict. In such a situation all disputes on controverted facts and reasonable inferences from the testimony must be taken in the plaintiff's favor.

The case is in federal court because of diversity only. The operative facts all occurred in Pennsylvania and Pennsylvania law governs. But there is no fundamental issue of law involved. The defendant's duty to John Wild in this case was that of an occupier of premises to one who comes on the premises for a business purpose. The duty is stated in Section 343 of the Restatement of Torts as follows:

"A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he

"(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and

"(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and

"(c) invites or permits them to enter or remain upon the land without exercising reasonable care

"(i) to make the condition reasonably safe, or

"(ii) to give a warning adequate to enable them to avoid the harm * * *."

This statement not only represents the general rule but has been specifically approved and adopted in Pennsylvania.*fn1 We have, therefore, no dispute between the parties on the rule of law which governs the case.The multitude of citations advanced by either side do not, therefore, give us any decisive help. The general principles being admitted, the problem is where this case fits in their application.

There is no question of John Wild's contributory negligence. This is out of the case by the jury's verdict in the plaintiff's favor. There is no doubt that no warning was given to Wild by any employee of the defendant to the effect that the roof was unsafe. As the trial judge puts it, "the defendant's position being that it had no knowledge of any dangerous condition, it naturally concedes that it gave no warning of such condition to the decedent or his employer." The plaintiff's expert said that, from the appearance of the roof, he, as an expert on roofs, could say that certain serious deterioration had taken place. Whether his testimony was based upon conclusions from examination of photographs or from actual inspection or both was the ...

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